Exhibit
99.2
CONSENT TO SUBLEASE and LEASE
EXTENSION AGREEMENT
THIS CONSENT TO SUBLEASE and
LEASE EXTENSION AGREEMENT (this “Consent”) made as of this
15 th
day of July, 2008, by and between
75 BROAD, LLC , a New York limited liability company,
having an office at 150 Broadway, Suite 800, New York, New York
10038 (hereinafter "Owner"), DELTATHREE INC. , a
Delaware corporation, having an office at 75 Broad Street,
31 st
Floor, New York, New York 10004
(hereinafter "Tenant"), and EMARKETER, INC., a
Delaware corporation having an office at 75 Broad Street, 32
nd Floor, New York, New York 10004 (hereinafter
"Subtenant").
WHEREAS, Owner and Tenant executed that certain agreement
of lease dated as of December 14, 1999 (as amended, February, 2000,
hereinafter called the “Lease”), covering certain space
presently consisting of the entire rentable area of the 31
st floor and entire rentable area of the 32
nd floor (collectively, the
“Premises”), in the building known as 75 Broad Street,
in the Borough of Manhattan, City of New York (the
“Building”) as more particularly described in the
Lease;
WHEREAS, Tenant and Subtenant entered into that certain
sublease agreement dated as of August 25, 2003 (whereby Tenant
sublet to Subtenant the entire 32 nd floor portion of the Premises) (modified by that
certain modification agreement dated September 10, 2003, and which
shall be further modified by the Second Sublease Modification (as
hereinafter defined), collectively the
“Sublease”);
WHEREAS, Tenant now desires to sublet to Subtenant and
Subtenant desires to sublet from Tenant the balance (i.e., the
entire 31 st
floor) of the Premises to Subtenant
(the Premises may hereinafter also referred to as the “Sublet
Space”) as more particularly described in the second sublease
modification to sublease agreement dated July 15, 2008 (the
“Second Sublease Modification”) attached hereto as
Exhibit A; and
WHEREAS, Owner is willing to grant its consent to the
Second Sublease Modification subject to, and in reliance upon, the
representations, warranties, covenants, terms and conditions
contained herein.
NOW THEREFORE,
in consideration of the mutual
covenants contained herein and intending to be legally bound hereby
as of the date hereof, Owner, Tenant and Subtenant agree as
follows:
1.
Sublease Subordinate to Lease . The Sublease
shall be subject and subordinate at all times to the Lease and to
all of the provisions, covenants, agreements, terms and conditions
of the Lease and this Consent, and Subtenant shall not do or permit
anything to be done in connection with Subtenant's use and
occupancy of the Sublet Space which would violate any of said
provisions, covenants, agreements, terms and
conditions. Any breach or violation of any provision of
the Lease or of this Consent by Subtenant shall be deemed to be and
shall constitute a default by Tenant in fulfilling such
provision. During the term of the Sublease, Subtenant
shall duly observe and comply with all of the terms, covenants,
agreements, provisions, obligations and conditions on the part of
Subtenant to be performed or observed under the
Sublease. (All capitalized terms contained herein shall
have the meaning ascribed to them in the Lease unless otherwise
indicated herein.)
2.
Representations and Warranties . Tenant and
Subtenant represent and warrant that no rent or other consideration
is being paid or payable to Tenant by Subtenant for the right to
use or occupy the Sublet Space or for the use, sale or rental of
Tenant's fixtures, leasehold improvements, equipment, furniture or
other personal property in excess of the amount of rent stated in
the Sublease. Tenant and Subtenant further represent and
warrant that the Sublease is the complete, true and correct
agreement between the parties.
3.
No Amendment of Sublease, Waiver . Tenant and
Subtenant agree that they shall not change, modify or
amend, cancel or terminate the Sublease or enter into any
additional agreements relating to or affecting the use or occupancy
of the Sublet Space or the use, sale or rental of Tenant's
fixtures, leasehold improvements, equipment, furniture or other
personal property, without first obtaining Owner's prior written
consent thereto. Neither this Consent, the Sublease, the Lease, nor
any acceptance of rent or other consideration from Subtenant by
Owner, or Owner's agent shall operate to waive, modify, impair,
release or in any manner affect Tenant's liability under the Lease
or Subtenant's liability under the Sublease, nor shall the
foregoing operate to waive any breach or violation of any provision
of the Lease or any rights of Owner against any person, firm,
association, corporation or other entity liable or responsible for
the performance of any of the provisions, covenants, agreements,
terms or conditions contained in the Lease, nor shall the foregoing
enlarge or increase Owner's obligations or Tenant's rights or
diminish Tenant's obligations under the Lease or otherwise; and all
provisions, covenants, agreements, terms and conditions of the
Lease are hereby declared by Tenant to be in full force and
effect. No assignment of the Lease or Sublease or
further sublease of all or part of the Premises or the Sublet Space
shall be made by Tenant or Subtenant, without the prior written
approval of Owner pursuant to and in accordance with the provisions
of the Lease and the Sublease.
4.
Ratification of Sublease . Nothing contained
herein shall be construed as a consent to, or approval of, or
ratification by Owner of any of the particular provisions of the
Sublease or as a representation or warranty by
Owner. Owner shall not be bound or estopped in any way
by the provisions of the Sublease. By executing and
delivering this Consent, Owner shall not be deemed to have modified
or waived any of Tenant's obligations arising under or with respect
to the Lease, except as expressly set forth herein.
5.
Remedies for Default . In the event of any
default by Tenant or Subtenant in the full performance and
observance of any of their respective obligations hereunder or in
the event any representation or warranty of Tenant or Subtenant
made herein shall prove to be false or misleading in any material
respect, such event may, at Owner's option, be deemed a default
under the Lease, and Owner shall have the right to and may pursue
all of the rights, powers and remedies provided for in the Lease or
at law or in equity or by statute or otherwise with respect to
defaults.
6.
Use . Subject to and in accordance with all of
the provisions, covenants, agreements, terms and conditions of the
Lease, the Sublet Space shall be used by Subtenant for the purposes
set forth in applicable sections or use clauses in the Lease, and
for no other purpose. Owner consents to the use of the
Premises as set forth in the Sublease Modification Agreement dated
September 10, 2003: i.e., “general and executive offices in
connection with the business conducted by Subtenant and its
permitted subtenants and assignees, and for no other
purpose.”
7.
Termination; Attornment; Nondisturbance
. A. If at any time prior to the expiration
date or any earlier termination of the Lease, the term of the Lease
with respect to the Sublet Space shall terminate or be terminated
for any reason whatsoever and provided Subtenant is in default
under the Sublease, the Sublease and the term thereof shall
terminate on or prior to the day of such termination and Subtenant,
at Subtenant's sole cost and expense, shall (i) quit and surrender
the Sublet Space to Owner, broom clean, in good order and
condition, ordinary wear and tear and damage for which Subtenant is
not responsible for under the terms of the Sublease excepted,
(ii) remove from the Sublet Space and the Building all of
Subtenant's personal property and all other property and effects of
Subtenant and all persons claiming through or under Subtenant, and
(iii) repair all damage to the Sublet Space and the Building
occasioned by such removal and otherwise as required by the
Lease. Except as otherwise provided in the Lease, Owner
shall have the right to retain any property and personal effects
which shall remain in the Sublet Space or the Building, on the date
of termination of the Sublease, without any obligation or liability
to Tenant or Subtenant, and to retain any net proceeds realized
from the sale thereof, without waiving Owner's rights with respect
to any default by Subtenant under the foregoing provisions of this
paragraph and the provisions of the Lease and
Sublease. If Subtenant shall fail to vacate and
surrender the Sublet Space in accordance with the provisions of
this paragraph, Owner shall be entitled to all of the rights and
remedies which are available to an owner against a tenant holding
over after the expiration of a term of a lease, including, without
limitation, collecting the sum set forth in Section 49 G of the
Lease pursuant to and in accordance therewith, and any such holding
over shall be, and be deemed to be, a default under the
Lease. Subtenant expressly waives for itself and for any
person claiming through or under Subtenant, any rights which
Subtenant or any such person may have under applicable laws in
connection with any holdover summary proceedings which Owner may
institute to enforce the foregoing. If the date of the
termination of the Sublease shall fall on a Sunday or holiday, then
Subtenant's obligations under the first sentence of this paragraph
shall be performed on or prior to the Saturday or business day
immediately preceding such Sunday or
holiday. Subtenant's obligations under this paragraph
shall survive the expiration date or earlier termination of the
terms of the Lease and Sublease.
B. Provided Subtenant
is not in default under the Sublease, Subtenant shall upon the date
of termination of the term of the Lease with respect to the Sublet
Space and without any additional or further agreement of any kind
on the part of Tenant or Subtenant, attorn to Owner and, Owner
agrees to, continue the Sublease with the same force and effect as
if Owner, as lessor, and Subtenant, as lessee, had entered into a
lease as of such effective date, for the then unexpired term of the
Sublease and containing the same provisions as those contained in
the Sublease. Owner and Subtenant shall have the same
rights, obligations, and remedies as were had by Tenant and
Subtenant, respectively, under the Sublease prior to such effective
date and the Sublease shall be deemed to be a direct lease between
Owner and Subtenant, except that in no event shall Owner be (a)
liable for any act or omission by Tenant, (b) subject to any
offsets or defenses which Subtenant had or might have against
Tenant, (c) bound by any rent or additional rent or other payment
paid by Subtenant to Tenant, (d) bound by any covenant to undertake
or complete any work to the Sublet Space or any part thereof, or
(e) bound by any obligation to make any payment to
Subtenant. Tenant shall immediately deliver to Owner any
security deposit which Tenant is then holding under the Sublease,
failing which the security deposit shall be delivered by Subtenant
to Owner upon demand. The foregoing provisions of this paragraph
shall apply notwithstanding that, as a matter of law, the Sublease
may terminate upon the expiration, termination or surrender of the
Lease and shall be self-operative; provided, however, that
Subtenant, upon demand of Owner, agrees to execute and deliver such
instrument or instruments as Owner may reasonably request to
evidence and confirm the foregoing provisions of this
paragraph. Provided Subtenant is not in default under
the Sublease, the foregoing provision of paragraph 7A shall be of
no force or effect.
8.
Indemnity . Tenant and Subtenant hereby each
indemnify and hold harmless Owner from and against (a) all claims
of whatever nature against Owner arising from any act, omission or
negligence of, or the use and occupancy of the Sublet Space by,
Subtenant, its contractors, licensees, agents, invitees, servants,
employees or occupants, (b) all claims against Owner arising from
any accident, injury or damage whatsoever caused to any person or
to the property of any person and occurring during the term of the
Sublease in the Sublet Space, (c) all claims against Owner arising
from any accident, injury or damage occurring outside of the Sublet
Space but anywhere within or about the Building, where such
accident, injury or damage results or is claimed to have resulted
from an act, omission or negligence of Subtenant or Subtenant's
agents, invitees, employees or occupants, (d) any breach, violation
or non-performance of any covenant, condition or agreement in the
Sublease set forth and contained on the part of Subtenant to be
fulfilled, kept, observed and performed, and (e) any cost,
liability or responsibility for the payment of any sales tax with
respect to any installations, furniture, furnishings, fixtures or
other improvements located, installed or constructed in the Sublet
Space, or the filing of any tax return in connection therewith
regardless of whether such tax is imposed upon Owner or
Subtenant. Furthermore, this indemnity and hold harmless
agreement shall include indemnity from and against any and all
liability, fines, suits, demands, costs and expenses of any kind or
nature (including, without limitation, reasonable attorneys' fees
and disbursements) incurred in or in connection with any such claim
or proceeding brought thereon, and the defense
thereof. In case any action or proceeding is brought
against Owner by reason of such claim, Subtenant, upon written
notice from Owner, shall at Tenant's, or Subtenant's sole cost and
expense, as the case may be, resist or defend such action or
proceeding using counsel approved by Owner, which approval shall
not be unreasonably withheld or delayed. Notwithstanding
the foregoing, Owner agrees that provided Subtenant’s
insurance carriers satisfy the qualifications set forth in the
Lease, any counsel appointed or selected by any of
Subtenant’s insurance carriers shall be deemed
approved. The provisions of this paragraph shall survive
the expiration date or earlier termination of the term of the
Sublease and this Consent. The
